Legal Provisions of Section 446 of Code of Criminal Procedure, 1973 (Cr.P.C.), India.
Procedure when bond has been forfeited:
The section lays down the procedure to be followed when a bond taken under this Code, has been forfeited. The person against whom an order of forfeiture of bond is to be passed should be given an opportunity of being heard so that he can give an explanation and satisfy the Court that there were valid reasons for his absence or nonappearance and therefore, he should not be penalised by forfeiture of bond.
ADVERTISEMENTS:
The Court while exercising jurisdiction under this section must record the grounds of proof that the bond has been forfeited. Failure to record such grounds would, however, be a mere irregularity curable under Section 464 of the Code.
Similar show cause notice has got to be given to surety as well when a surety- bond is forfeited and the Court orders recovery of bond money from him. In absence of a show cause notice to surety, the order of forfeiture of his bond will be liable to be quashed.
Image Source : luna.edu
The Court may proceed to recover the penalty (surety-bond amount) as if it were a fine imposed by it under the Code. In default of payment thereof, the surety is liable to imprisonment in a Civil Jail for a term which may extend to six months.
ADVERTISEMENTS:
However, before the surety is so imprisoned, the Court should serve a notice on the Collector under Section 421 (warrant of attachment) and it is only when the Collector pleads inability to recover the amount, the surety should be sent to prison.
The proviso to sub-section (2) empowers the Court to reduce the liability of surety under the surety-bond in proper cases at his discretion. The Supreme Court has ruled that a single order of forfeiture of bond and levy of a penalty cannot be passed by the Court.
In Shyam Sunder Sharma v. State, the accused had remained absent in Trial Court only on one date and subsequently surrendered before the Court. The petitioner who stood surety to accused did not appear before the Court despite service of notice as he was searching for the accused.
The petitioner had also filed his application and reply to the notice served by the Trial Court. Thereupon, the Trial Court had passed an interim stay order for recovery of amount from the petitioner but subsequently no order was passed after considering the application and reply of the petitioner. In such circumstances, the High Court of Rajasthan deemed it proper and reasonable to reduce the amount of forfeiture from Rs. 25,000/- to Rs. 2,000/- only.
ADVERTISEMENTS:
It has been held that the surety-bond stands forfeited as soon as breach of the terms of the bond is committed on failure of the accused to appear in Court on the specified date, time and place. The surety is liable only when the accused does not appear before the Court on the date mentioned in the bond.
A bail-bond taken by the Police and not by the Court under the Code cannot be forfeited as the undertaking for appearance in such a case is given to a police officer and not to the Court.
It must be clarified that a surety-bond being a contract between the surety and the Court, is altogether different from the one under a bail-bond in which the accused undertakes to appear before the Court as and when required. Therefore, when a bond is taken only from the surety, the person for whose presence in the Court such bond is taken, cannot be held liable and asked to pay penalty. It is only the surety whose bond will be liable to be forfeited under this section.
The Supreme Court in Dadamiya v. State, inter alia, observed that while construing the terms of a surety-bond for the production of an accused person, the purpose and object of executing it must be kept in view. It should, therefore, be so designed as to serve the public purpose. “It must not be so unduly strained as to result in defeating its essential purpose”.
In Saheb Singh v. State of Madhya Pradesh, appellant was surety of the accused. The accused was regularly appearing and was also present in Court on the date of judgment. But, he ran away from accused-box of the Court before the pronouncement of judgment and was absconding. The High Court of Madhya Pradesh held the forfeiture of surety bond paper under these circumstances.
[446A. Cancellation of bond and bail-bond:
Without prejudice to the provisions of Section 446, where a bond under this Code is for appearance of a person in a case and it is forfeited for breach of a condition—
(a) The bond executed by such person as well as the bond, if any, executed by one or more of his sureties in that case shall stand cancelled ; and
(b) Thereafter, no such person shall be released only on his own bond in that case, if the Police Officer or the Court, as the case may be, for appearance before whom the bond was executed, is satisfied that there was no sufficient cause for the failure of the person bound by the bond to comply with its condition:
Provided that subject to any other provision of this Code he may be released in that case upon the execution of a fresh personal bond for such sum of money and bond by one or more of such sureties as the Police Officer or the Court, as the case may be, thinks sufficient.